The First Amendment Rocks!

1. Situation:

Many Americans take pride in our right to free speech. We are able to speak our minds and contribute to the “marketplace of ideas” in many areas of debate or concern. It doesn’t matter whether it be concerning the pros and cons of stem cell research, one’s stance on illegal immigration or whether or not little Suzy’s 8 o’clock bedtime could stand to be knocked back to 9. We are all able to voice our opinions on any subject matter and are free to engage in friendly debate with one another (though I’m pretty sure Suzy is outnumbered by her parents 2:1 on this one).

So in criticizing viewpoints or presenting opinion involving another individual, where is the line drawn? When you’re the one suddenly put on the spot and become a target for criticism, should you have the right to defend yourself through the media?

Consider this: It’s that time of year again — election time at BGSU. USG has been very vocal in their campaigns this year and Timmy Turner, in particular, has been campaigning like crazy. Recently, he had spoken out against opponent, Bobby Brown in various interviews — both in print in the BG News and via broadcast on WBGU. Turner voraciously criticized his opponent’s views on a multitude of political issues and claimed that he urged his friends to attend UT. Upon catching wind of this, Brown was furious — he would NEVER let a friend go to UT. Brown wrote letters to both WBGU and the BG News, demanding he be given time to publish a response to Turner. Should Brown be given a chance to reply?

2. Legal Background:

In Red Lion Broadcasting Co., Inc. v. FCC (1969), the Supreme Court upheld the FCC’s fairness doctrine, which provided that broadcasters of content via television and radio be required to air fair discussion of public issues. Red Lion Broadcasting had aired a harsh criticism of an author’s work and he wanted a chance to respond. The FCC demanded that Red Lion provided the plaintiff with a copy/transcript of the broadcast and Red Lion refused. The Court ruled that the doctrine used by the FCC “enhanced” First Amendment rights and helped to ensure that public broadcasts remained fair and balanced.

In Miami Herald v. Tornillo (1974), however, the Court ruled differently for criticism published through print. The Miami Herald had published two editorials criticizing the campaign of candidate Tornillo. Tornillo drafted responses to the material published by the paper and demanded they be published. After the paper refused, Tornillo sued based on a Florida statute that insisted political candidates be granted the right to have responses to criticism be published. The Court ruled that this statute was unconstitutional, as it violated the right of editors to choose what material appeared in the their publication.

3. Questions! (For your consideration…)

– What are the differences between being able to exercise a “right to reply” via broadcast or print?

– Are regulations that grant this “right” constitutional? Do they infringe free speech?

– Do you think Tornillo’s responses should have been published by the paper?

http://www.law.cornell.edu/supct/search/display.html?terms=turner%20broadcasting&url=/supct/html/93-44.ZO.html

In 1992, it became a requirement for cable television systems to set aside some of their channels for local broadcast television.  This requirement was because of the Cable Television Consumer Protection and Competition Act.  Congress came to this decision after looking at three years of hearings on the cable broadcast industry.  Among its most important aspects, the Act subjects the cable industry to rate regulation to the Federal Communications Commission, prohibits municipalities from awarding exclusive franchises to various cable operators and regulates the FCC develop regulations imposing technical standards for cable operators.  In this case, the tough issues at hand are dealing with sections four and five of this Act which, requires for cable operators to carry the channels of a certain number of local broadcast stations.  In 1994 then, the court held that the “must-carry” provisions pass the laws set in the Contstitution.  This was determined when judges explained that the “must-carry” provisions supplemented governmental objectives.  Also, the provision was narrowly tailored to agree with these governmental interests.

Legal Issue:

The issue at hand is the constitutionality of the “must-carry” provisions within sections 4 and 5 of the Act.  In Section 4 involves the carriage of local television stations that operate within the same television market as the cable system.  This means that any cable system with more than 12 active channels and 300+ subscribers must set aside one-third of its channels for local commercial broadcast stations.  Section 5 says that a cable system with over 36 channels must carry each local public broadcast station requesting carriage.

Decision:

The court ruled in favor of Turner Broadcasting Corporation.

Analysis:

The court ruled in favor of the Turner Broadcasting Corporation because cable systems were seen as publishers meaning they had the right to restrict others from using their own system.

Questions:

1.)   What rules under the Television Consumer Protection and Competition Act did Turner Broadcasting Corporation have a problem with?

2.)   Why do you think that the court ruled the other way around when this case was remanded in 1997?

3.)   Which First Amendment tests were used in this case that are also used for print media?

1. FACTS OF CASE:

The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a “Christian Crusade” series. A book by Fred J. Cook entitled “Goldwater — Extremist on the Right” was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; and that he had now written a “book to smear and destroy Barry Goldwater.”  When Cook heard of the broadcast he concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time; and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit, the FCC’s position was upheld as constitutional and otherwise proper.

More information available here: Red Lion Broadcasting Co. v. FCC.

2. LEGAL ISSUE

The FCC by administrative rulemaking had a requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. As a result the FCC added an “equal time rule” and a “response to personal attack” rule. Red Lion Broadcasting Co. challenged these rules as unconstitutionally infringing on the speech of the station’s editorial judgment. The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters.

3. DECISION

In a unanimous decision, the Court held that the fairness doctrine was consistent with the First Amendment. They sided with the FCC.

4. ANALYSIS

Writing for the Court, Justice White argued that spectrum scarcity made it “idle to posit an unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.” The Court held that the FCC’s fairness doctrine regulations enhanced rather than infringed the freedoms of speech protected under the First Amendment. With respect to the regulation of personal attacks made in the context of public issue debates, the FCC’s requirement that the subject of the attack be provided with a tape, transcript, or broadcast summary, as well as an opportunity to respond without having to prove an inability to pay for the “air-time,” insured a balanced and open discussion of contested issues. The requirement that political editorializing be presented for and against both sides of the debated issues also contributed to the balanced discussion of public concerns.

5. QUESTIONS

1. Do you think Red Lion should have initially sent Cook a taping of the 15-minute broadcast so that he could have adequate response time?

2.Do you agree with the court’s decision? If you were the judge in this case, would you side with the FCC?

3. Do you think the FCC’s fairness doctrine regulations, concerning personal attacks violates the First Amendment’s freedom of speech?

The Little Gallery at BGSU Firelands.

1. SITUATION

Bowling Green State University’s Firelands campus made national news a few years ago concerning an instance of artistic censorship.

James Parlin, a University student, constructed a sculpture called “The Middle School Science Teacher Makes a Decision He’ll Live to Regret” that was placed in Firelands’ Little Gallery. The sculpture depicted a female middle school student performing oral sex on a standing male middle school science teacher. Both sculptures were fully clothed and no body parts were exposed. The sculpture was removed from the gallery by Firelands’ former dean because it was considered inappropriate for children and families who visited the gallery.

(For those who wish to view the sculpture, an image is available HERE.)

The censorship situation garnered much attention from critics online. The National Coalition Against Censorship was outraged at the decision and issued a statement addressing what it called a violation of First Amendment rights and academic and artistic freedom.

One blogger met with Parlin and talked to him about the situation. You can read the blog post HERE.

Parlin said the University could have handled the situation more professionally by putting up a warning sign so people could choose if they wanted to view his sculpture. He said “The Middle School Science Teacher Makes a Decision He’ll Live to Regret” is a “moralistic piece about the freedom of will, compulsion and decision making,” and is based on someone who lost a job, family and freedom because of a bad decision that led to disaster — his goal wasn’t to create controversy or offend anyone with an obscene piece of artwork.

2. LEGAL BACKGROUND

According to legal precedents set in 1973 by the Supreme Court case MILLER VS. CALIFORNIA, obscene material is not protected under the First Amendment.

Material is defined as obscene based on three criteria:

• The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest in sex
• The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
• The work, taken as a whole, lacks serious literary, artistic, political or scientific value

The question that must be answered to assess this situation is if “The Middle School Science Teacher Makes a Decision He’ll Live to Regret” is obscene material.

3. QUESTIONS

How does the test described in Miller v. California apply to this situation?

Do you think the former Firelands dean made the right decision in removing “The Middle School Science Teacher Makes a Decision He’ll Live to Regret” from the Little Gallery? Why or why not?

What solutions do you think the deans could have used instead of completely removing James Parlin’s piece from the Little Gallery?

Link: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0383_0413_ZO.html
1. Facts of case: John Cleland wrote a novel called Memoirs of a Woman of Pleasure also known as Fanny Hill. In the novel, main character Fanny Hill is a prostitute, which means she has sex in exchange for money. The reading includes several descriptions of sex and as a result some readers are offended. Many years later G.P. Putman’s sons published Fanny Hill. At the time the state of Massachusetts had a strict law that said the state could file a lawsuit against any book that was found obscene and if found obscene the book would have to end publishing. Massachusetts attorney General Cowin filed a lawsuit against Fanny Hill. Soon after G.P.’s sons join the case to defend the books further publishing. During the trial there was a mixture of opinion, while a large number of scholars including professors and teachers speak in favor of the book. However, the trial judge ruled the book obscene, which then G.P.’s sons appealed to Supreme Judicial Court of Massachusetts and eventually the Supreme Court.
2. The issue here, was the novel Fanny Hill obscene or was it just an art expression protected by the first amendment.
3. The decision here was 6-3 in favor of the book, while there were six that agreed the book was not obscene. They had trouble agreeing on a reason.
4. In short the Supreme Court ruled in favor of the book because the Supreme Judicial Court of Massachusetts admitted the book had literacy value. Further stating that the court misinterpreted social value, as it is stated in the constitution.
The following was misinterpreted:
a)The dominant theme of the material taken as a whole appeals to a prurient interest in sex.
b)The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.
c)The material is utterly without redeeming social value.

5. Questions to consider…
1.What is the significance in this case?
2.How has legal precedent changed since this case was decided?
3.How would this case be ruled in 2011?

1. Situation

For most American artists, their art is expressed through their feelings and emotions, even if the final product is indecent. Therefore, creative expression is the central idea of how artists communicate their vision to the audience.

Think about all of the artists that need funding for programs, workshops, and most importantly to support their love of the arts and these individuals are not allowed to receive the funding because their art is deemed as indecent.

2. Legal Background

NEA v. Finley disputed the decency provision in government grants to artists through the National Endowment for the Arts. In 1990, Congress passed a law requiring that “general standards of decency and respect for the diverse beliefs and values of the American public” be taken into consideration for the NEA’s funding decisions.  Finley, an artist sued the NEA arguing that this law restricts the arts funding, which violates the First Amendment. The lower courts decided that this case was unconstitutional, however the Supreme Courts appealed the decision 8-1.

3. Questions

1. What do you think constitutes the “standard of decency” for artwork?

2. Do you think the Supreme Courts decision restricts artists creativity and First Amendment rights?

3. What are the arguments in favor of and against  the “standard of decency” for artists seeking funding?

Link: Miller v. California 413 u.s. 15 (1973)

And http://supreme.justia.com/us/413/15/case.html

1. Facts of the Case- On June 21, 1973, Marvin Miller was convicted for violating a California law which prohibits the distribution of obscene material. Miller mailed out a campaign that advertised the sale of adult material. He was tried before a jury, and was convicted of violating California Penal code 311, a misdemeanor of “knowingly distributing obscene matter.” The Appellate Department, Superior Court of California, County of Orange, confirmed the conviction.

The case was first argued on January 18-19, 1972 after some people who received some of Miller’s brochures complained to police. He sent five “obscene” brochures in an envelope in the mail to a restaurant in Newport Beach, California. The manager of the restaurant and his mother, whom had not requested the brochure, brought it to the police.

Included in the brochures were advertisements for books called “Man-Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography,” and also a film called “Martial Intercourse.”

2. The Issue- The legal issue concerning this case is whether obscene material is protected by the First Amendment.

3. The Decision- A state appeals court upheld the conviction. Miller lost his appeal and the court ruled that the First Amendment does not protect obscene materials. The case Roth v. United States was cited in the reasoning.

4. Analysis- The court said a piece of work is subject to state regulation when it is related to sex, offensively portrays sexual conduct, and does not have legitimate “literary, artistic, political, or a scientific value.”

The court decided there are three guidelines which the person up for conviction must face:
a) Would an average person in the community find the material indecent or salacious?
b) Does the material obviously describe sexual conduct as it is defined by the state law
c) Does the material lack artistic, political, scientific, or literary value?

5. Questions-
– Do you agree with what the court ruled? Do you think it is fair? Why or why not?
– Should “obscene material” be a protected freedom? In what instances? Or do you believe this kind of material should never be allowed?

– Do you think this issue would be handled the same way today?

Crazy Axe Commercial

Axe has a commercial for their spray deoderant.  It refers to men having premature perspiration which has a sexual reference to premature ejaculation.  In the commercia there are several sexual references including a woman holding up a thong, a “wet dream”, and a woman licking a popsicle.  All of these events cause the men to sweat under their arms and it showing through their shirt.  The commercial says that with Axe body spray you are in full control which is referring to controlling your premature ejaculation during sex.

Why would this case not apply to Miller vs. California’s Miller Test? http://scholar.google.com/scholar_case?case=287180442152313659&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Would this be considered obscene or indecent?

Does it pass the Pacifica Test?

1. Facts of the Case

FCC v. Pacifica Foundation (1978) http://www.bc.edu/bc_org/avp/cas/comm/free_speech/pacifica.html

One day, a father was driving home with his son in the car, when they hear George Carlin’s “Filthy Words” being broadcasted. The father issued a complaint to the FCC, who forwarded that complaint to the Pacific Foundation, which was broadcasting Carlin’s monologue. Pacifica said that before the broadcast, there was a disclaimer that said that the content contained sensitive language that could be seen as offensive. They also said: Carlin as “a significant social satirist, who like Twain and Sahl before him, examines the language of ordinary people … Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.”

On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica “could have been the subject of administrative sanctions,” as they found the power to regulate under  18 U.S.C. 1464, which prohibits use of any profane, indecent or obscene language by ways of radio broadcast. The Commission did not impose formal sanctions, but it did state that the order would be “associated with the station’s license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress.” When asked to clarify, the FCC said that it never intended to put an absolute prohibition on broadcasts of this type of language, but sought to channel it to times of day when children would not be among the audience.

The U.S Court of Appeals for the District of Columbia Circuit reversed the FCC’s decision, with Judge Tramm and Chief Judge Brazelon concurring that the FCC’s decision was a form of censorship, according to the Communications Act of 1934. Judge Leventhal dissented, saying that children need to be protected, not only from indecent language, but also from the idea that such language had official approval.

2. Legal Issue

The legal issue is whether the First Amendment allows the government any power to restrict the public broadcast of indecent language.

3. Decision

The court ruled in favor of the FCC, saying that while society finding speech offensive is not a sufficient reason to suppress it, this broadcast had no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

4. Analysis

This is considered a landmark case in U.S. history, because it defined the power or regulation of the FCC, and essentially pushed the broadcast of “offensive” things on public access TV and radio to between 10 p.m. and 6 a.m.

5. Questions

-Do you agree with the court’s ruling?

-Is there a line between politically offensive speech and socially offensive speech?

-With some TV shows pushing the limits of what is acceptable, has this court decision become outdated?

                                                                                               Cohen v California (1971)

Facts:

In April of 1968, Paul Robert Cohen was arrested in a corridor of the Los Angeles County Municipal Courthouse for wearing a jacket with the phrase, “Fuck the Draft,” on it. Because there were women and children present and the phrase was within plain sight of everyone there, Cohen was charged with being in violation of California Penal Code statute 415, which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . .” Cohen was convicted and was sentenced to 30 days in jail.

 Legal Issue:

The issue to be decided here is whether or not California Penal Code statute 415 infringed on Cohen’s First and Fourteenth Amendment rights to freedom of expression.

 Decision:

The U.S. Supreme Court overturned Cohen’s original conviction saying, “At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected.”

Analysis:

The court said that in this case the words on Cohen’s jacket did not fall into any of the categories of unprotected speech. They were not fighting words, obscene words or hate speech. Furthermore the court said that after seeing Cohen’s jacket, no reasonable person would be moved to violence by these words and anyone present who saw the words on his jacket could choose to look elsewhere.

Questions:

1. If the phrase on Cohen’s jacket was not considered obscene, is there any phrase that would be considered obscene?
2. How does this case affect what is considered appropriate to wear in public?
3. How does this case compare to Chaplinsky v New Hampshire?